Keith v. Horner
| Decision Date | 30 November 1863 |
| Citation | 32 Ill. 524,1863 WL 3212 |
| Parties | MICHAEL KEITH and JOHN GEDNEYv.HENRY H. HORNER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of Clinton county.
The facts are sufficiently stated by the court.
Buxton and White, for plaintiffs in error.
The bill alleges that John Gedney, on the 23d of May, 1859, sold and conveyed to Michael Keith a town lot, in part payment for which he executed to Gedney two promissory notes, for two hundred and thirty three dollars and thirty-three cents each, due at twelve and eighteen months, with ten per cent. interest; that on the same day Gedney indorsed them to Horner; that one of the notes was due, and that both were unpaid, and that Keith and Gedney were insolvent. The bill prays that a vendor's lien may be decreed and enforced against the lot, to the amount of the notes, and for a sale without redemption. The defendants failed to answer; the bill was taken as confessed, and a decree passed, declaring that a vendor's lien existed, ordering the payment of the money due in thirty days, and the money not then due, by the 23d day of November, 1861, and, in default of payment, that the property be sold, with redemption. To reverse that decree this writ of error is prosecuted.
This court has held that the law does not authorize the assignment or transfer of a vendor's lien to the purchaser of the notes given for the purchase money; that such a lien is not assignable, even by express language; that the lien is personal, and can only be enforced by the vendor. Richards v. Leaming, 27 Ill., 431. This lien would, no doubt, pass, on the death of the vendor, to his representatives, but it is not the subject matter of sale and transfer by contract. The case of Richards v. Leaming was, in all essential facts, similar to this, and the rule there announced is decisive of this case. The decree of the court below must, therefore, be reversed, and the bill is dismissed.
Decree reversed.
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